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Computer Law Review and Technology Journal

Abstract

Ecclesiastes reminds us that there is nothing new under the sun, and this may be equally true when it comes to electronic transactions. In the electronic world, agreements are still embodied in contracts, contracts are still entered into when two parties reach an enforceable agreement on terms, and objective evidence still determines whether an agreement has been reached. Fraud and piracy are no less illegal because they happen online. In other words, laws governing the physical world are also relevant in the virtual world. Nevertheless, despite all the similarities, there may still be some differences in form, and there are times when the law respects form over substance. Consequently, differences in form may raise obstacles to using electronic commerce.

Like many other countries, China has endeavored to overcome this formal barrier. After several preliminary trials at both national and local levels, it finally enacted the Electronic Signatures Law in August 2004. This is the first law China has enacted specifically for electronic transaction issues.

This paper aims to characterize the Chinese approach to electronic transaction legislation, based on a comparative study of several critical points. First, it will address the earlier legislative endeavors in this field. The paper will also touch on the approach the new law takes to respond to various challenges. In doing so, it adopts an inside perspective, by taking advantage of the co-authors' unique experiences in drafting this law, exploring the legislative history and revealing the policy considerations behind the written words. Based on this analysis, the conclusion outlines the road toward a sound legal environment for electronic transactions in China; a step critical to the continued development of the country into an economic force to be reckoned with.

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